Agreeing on 12 Enron jurors no easy feat

THE ENRON TRIALLawyers, set to start eliminating candidates today, will be drawn to different qualities

MARK BABINECK, Copyright 2006 Houston Chronicle

Published 6:30 am, Monday, January 30, 2006

Prosecutors and attorneys for former Enron Chief Executives Ken Lay and Jeff Skilling begin picking a jury this morning at the U.S. courthouse, but one former federal prosecutor says the term "jury selection" is a misnomer.

U.S. District Judge Sim Lake will quiz the 100 citizens set to appear in an 11th-floor courtroom today, then cull them with help from lawyers from both sides until 12 panelists emerge.

Without giving a reason, the defense can strike 12 pool members and the government can eliminate six, according to rules set by Lake. Each side can shed two more when it's time to choose four alternates.

The prosecution and defense have an unlimited number of challenges for cause, with which they can argue there is a compelling reason for Lake to remove a member.

The jury is in there somewhere, unless Lake decides he needs to bring in the approximately 50 others who survived the first round of cuts after filling out questionnaires probing their backgrounds and opinions of the Enron cast of characters.

Eads said each side likely has a profile of whom they want in the box.

And whom they don't.

"If I were the government, I would really want older people on the jury who were faced with the fear of losing their retirement savings, because I think that's a big issue," Eads said, recalling the horror stories of Enron workers and retirees left with nothing of their nest eggs.

Younger jurors, she said, might be a defense asset.

"They might see Lay and Skilling as go-getters who have the government on their backs," Eads said. "Plus, in Texas you've got the psychology that the government should leave us alone."

The problem, said Rusty Hardin, a defense attorney and former Harris County prosecutor, is that anti-Enron biases run strong in the community despite the four-year lag since the company's collapse.

Hardin should know. He helped choose the jury that heard the first Enron trial, against auditor Arthur Andersen.

Lingering anger

Jurors convicted the once-mighty accounting firm of obstruction of justice, though the U.S. Supreme Court later tossed out the verdict.

"I've rarely seen a case or set of facts that has so outraged people over a long period of time," Hardin said. "I've tried ax murderers and I've never found the public as upset as this."

Customarily, federal judges handle the interaction with the jury pool, posing questions and seeking answers that observing attorneys then use to decide where to spend a limited number of strikes.

The process in federal courts typically is quick, and Lake has said he wants to seat a jury today.

Robert Hirschhorn, the consultant to Lay's attorneys, said it's a needlessly breakneck pace.

"This is a trial where if Ken Lay is convicted, he could very well die in prison at his age," Hirschhorn said of his 63-year-old client. "I think when you've got those kinds of stakes in this fight, there's no reason to rush to pick the 12 people who are going to make this important decision."

When Hirschhorn worked on the Oklahoma City bombing case on behalf of defendant Terry Nichols, lawyers persuaded U.S. District Judge Richard Matsch to allow direct questioning.

"When lawyers asked some of the same questions, many of their answers were much different than what was told to the judge," Hirschhorn said. "Jurors felt like they could be more honest (about their biases) with lawyers, because they understood the lawyers had a dog in the fight."

Nichols was acquitted of murder but convicted on related counts and sentenced to life in prison.

As for Lay and Skilling, Lake began the vetting process last year by sending 400 questionnaires to prospective jurors. He eliminated some who had qualifying excuses and another 109 who expressed irreparable biases, some in the form of scathing written remarks.

The large number of respondents who lashed out at Enron, Lay or Skilling troubles Hirschhorn.

"Those were the ones who expressed it on paper. We know there are jurors who have very strong and very negative feelings about this case," he said. "We have to create an opportunity to continue to express those views."

Federal prosecutors refused to comment, as is their custom, or reveal if they have a jury specialist on their team.

Skilling's consultant, Reiko Hasuike, also declined to comment and typically maintains a low profile about strategy.

Attorney Chip Babcock can empathize with the defense teams. In 1998, he was hired to defend talk-show queen Oprah Winfrey against a multimillion-dollar defamation lawsuit brought by a group of Texas cattlemen upset that she and a guest criticized beef safety on one episode.

Looking for a few leaders

The trial was set in Amarillo, at the heart of the nation's cattle feeding industry, and some of the jurors had direct connections to the business.

"I dare say more people on the panel had heard of Oprah than (those on this panel) have heard of Ken Lay or Jeff Skilling," Babcock said. "I don't think it's going to be the problem they're saying it's going to be."

U.S. District Judge Mary Lou Robinson queried the jurors, leaving lawyers and their helpers to make decisions. For Babcock and Winfrey, their jury expert was Dr. Phil McGraw.

Babcock's Dr. Phil, of course, is now TV's Dr. Phil, thanks in part to Winfrey's exoneration.

"We had one guy who was on the jury who was a cattle rancher from Guthrie, with a big ol' belt buckle. I got criticized big-time for this guy, but Dr. Phil and I spotted in him some things we thought could be really helpful, and sure enough he became one of our biggest advocates in the jury room," Babcock said.

For Babcock, the key is currying favor with the "three, four, maybe five" citizens who appear likely to take leadership roles among the group.

"There has got to be a certain number of jurors who will be followers," he said.

Digging for answers

Lawyers widely agree most potential jurors want to be objective.

But wanting to be objective and being objective are two different things, Hirschhorn said.

To get an example, Hirschhorn reached back to the Oklahoma City bombing case, where he worked for attorney Michael Tigar.

"One juror said to the judge, 'I can set my opinions aside,' " Hirschhorn recalled. "Mike turned to me and asked, 'Robert, what do we do with that?' And I gave him the following question: 'You told the judge you could set it aside — where do you put it?'

"And the juror thought about it, and thought about it, and said, 'You know, Mr. Tigar, you're right. I'd still be thinking about it.' "

It's that kind of introspection Hirschhorn thinks only lawyers can pry from pool members.

Hardin agrees.

"Talking to judges is like talking to God," Hardin said. "You don't want to tell God you've predetermined the case."